Published tribunal order
Tenancy Tribunal case 4682629 — Smoke alarms at 28 Moki Place, Ruakaka 0116
Decided 31 Jan 2024 · Published 31 Jan 2024 · Application 4682629
- Smoke alarms
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details. 2.
- The Bond Centre is to pay the bond of () to immediately.
Reasons
Background
- The tenancy began on 8 October 2021 and ended on 20 October 2023.
- The tenants’ application raises issues relating to the front fence, mould and dampness, healthy homes standards (insulation, drainage, draughts), incorrect healthy homes statement, incorrect insurance statement, and interference with peace, comfort and privacy.
- The landlord’s application sought the cost of reinstating smoke alarms at the property. At the hearing, [The property manager/s] also introduced claims for water rates and rent arrears.
- The hearing took place in [Event location suppressed] on 17 January 2024. Both parties attended the hearing.
- On 17 January I made an order for partial release of the bond. Tenant application Fence
- The property has a small front lawn that borders onto a footpath on Moki Place. There is a reserve on one side of the property and on the other there is a lane / driveway that accesses other houses.
- At the start of the tenancy the front fence was comprised of timber posts with timber frames and hurricane wire inserts. The fence was old and in a poor state of repair. The fence down the sides of the property was (as best as I can tell from the photographs) post and wire, again in a poor state of repair and somewhat overgrown.
- [The property manager/s] met with Ms Dey to view the property before the start of the tenancy. Both agree that they discussed the fence in that meeting, but they disagree about what was said.
- Ms Dey submitted that [The property manager/s] told her that the fences would be sorted out as soon as possible.
- [The property manager/s] submitted that she told Ms Dey there was no intention to do the fences any time soon, and if a secure fence was an important consideration for Ms Dey then perhaps this wasn’t the right property for her.
- [The property manager/s] submitted that: a. Ms Dey asked her to remove a large bougainvillea bush that had overgrown the fence on the reserve side. b. The [Council] cut the bush down and she tidied up the remains. c. When the bush was removed it left a large missing section in the fence. d. The owner decided to replace that fence with a new close boarded fence, and then to replace the fence on the other side in the same style. e. She decided that erecting a close boarded fence at the front of the property would ‘close it off’ and she decided that a hedge was preferable for that area. f. The fencer put in posts at the front to begin that part of the job. g. Planting out the hedge has not yet begun due to “weather and storms up north”.
- Landlords have a duty to provide and maintain the premises in a reasonable state of repair 1 .
- This duty does not compel the landlord to upgrade or improve the premises, only to maintain it.
- If a landlord undertakes to do work on the property, and the tenant accepts the tenancy on the basis of that undertaking, then the landlord must do the work that they promised to do. Ms Dey submitted that [The property manager/s] promised to sort out the fencing when they met before the start of the tenancy. However, [The property manager/s] denies making any such promise. I do not have any independent evidence about that conversation. Ms Dey has the burden of proof.
- My finding is that it is not proven that [The property manager/s] promised to improve / replace the fencing.
- However, the photographs show that the front fence was effectively removed when the fencer erected the side fences. Although the front fence was (as noted above) aged and imperfect, it at least provided some sort of a barrier between the property and the footpath. That fence was removed, and only posts remained, in anticipation of a hedge fence that did not eventuate during the period of Ms Dey and Mr Pinny’s tenancy.
- Ms Dey and Mr Pinny were not legally entitled to a new front fence, but they were entitled to the continued use of the existing one, such as it was. The missing front fence left the property exposed, and this caused a loss of amenity for Ms Dey and Mr Pinny that warrants an award of compensation.
- The fence was ‘missing’ for approximately one year of the tenancy.
- I will award compensation of $400.00. Smoke alarms
- The landlord provided four smoke alarms at the start of the tenancy. 1 Section 45(1)(b) Residential Tenancies Act 1986 (“RTA”)
- The tenants submitted that they had problems with the smoke alarms going off ‘at random’. The problem began within weeks of the start of their tenancy in October 2021.
- They submitted that they raised the issue verbally with [The property manager/s] several times.
- The landlord did not take any action until mid-2023.
- [The property manager/s] submitted that the tenants did not raise this issue with her verbally.
- In June 2023 she received a text message from the tenants raising several issues including smoke alarms. She instructed [electrician] to go to the property and check the stove (which is one of the issues that the tenants raised in their text) and also the smoke alarms.
- [The electrician] went to the property. They checked the smoke alarms and found that they seemed to be working ok.
- [The electrician] went to the property several times over this period. The evidence around their attendances is unclear and confusing, but it is clear enough that: a. [The electrician] did not find any fault with the alarms. b. [The electrician] put the alarms back up again after the tenants removed them (or some of them).
- I am satisfied that the landlord met its obligation in respect of smoke alarms. The landlord supplied smoke alarms at the commencement of the tenancy. One of the alarms was in a hallway and two were in bedrooms. There is no evidence to indicate that the alarms were not of a compliant type.
- It is not proven that the tenants raised any issues about the alarms before June 2023. When they did, [The property manager/s] acted promptly. It is possible that the alarms may have an intermittent fault that the electrician could not identify, but [The property manager/s] could do no more than instruct a qualified person to inspect them. Mould, healthy homes compliance, healthy homes statement
- Ms Dey and Mr Pinny submitted that: a. They noticed mould developing on their belongings in the wardrobe in the bedroom. b. They then noticed mould developing on the bathroom ceiling. c. Mould developed around windows. d. There were gaps around the windows. e. The ceiling insulation is ‘fluff’ and not segments (as stated on the healthy homes statement). f. Two of the exterior downpipes terminate above ground level.
- [The property manager/s] submitted that the property was extensively renovated before the start of this tenancy, and it is the tenant’s responsibility to wipe away mould from surfaces. [The property manager/s] submitted that the tenants did not raise any concerns about mould until near the end of the tenancy.
- Landlords must meet the healthy homes standards. The healthy homes compliance date for this tenancy was 8 January 2022 (90 days after the start date of the tenancy).
- The healthy homes standards require landlords to: a. Ensure that there are no “unreasonable gaps” around doors and windows. b. Provide “efficient drainage for the removal of storm water and surface water”. c. Install compliant ceiling and underfloor insulation.
- Ms Dey provided several photographs showing gaps where the aluminium frame of the window does not sit flush against the window surround. There is insulation / draught stopping material in the windows, but the windows shown in the photographs there have gaps around the material when the window is closed.
- Ms Dey’s photographs also show condensation on one window, and deterioration / rotting on an interior window sill.
- Ms Dey’s photographs show two downpipes that do not reach ground level. They terminate a meter or two above ground level, and discharge directly onto the ground.
- [The property manager/s] submitted that the soil is essentially sand at that location, which drains very quickly and there is no need for storm water drains.
- Ms Dey’s photographs show that there is ‘insulfluff’ insulation in the ceiling. The healthy homes statement that the landlord provided to the tenants describes the ceiling insulation as “segments”, which is incorrect.
- [The property manager/s] submitted that their builder checked the insulation before the start of the tenancy and informed them that it was in acceptable condition and at a compliant depth / thickness. Ms Dey questioned the accuracy of this information, and I accept that her concerns are reasonable given that the type of insulation was incorrectly described in the healthy homes statement.
- My findings are: a. The two downpipes that do not go to ground level need to be extended or replaced so that they extend to the ground. However, there is not enough evidence to show that the property has a problem with stormwater drainage / surface water. b. There is enough evidence to show some extent of moisture ingress on some of the windows. This is a ‘property problem’ that the landlord needs to address. c. There is insulation in the ceiling, and it is not proven that the insulation is non-compliant. However, the fact that the insulation is mis-described in the healthy homes statement raises some questions about the assessment that the landlord’s builder carried out before the start of the tenancy. The healthy homes requirements about insulation type, depth and r-rating are exact and somewhat technical – it is important for the landlord to ensure that any assessment is done by a qualified person. d. There is evidence of some mould development in the premises during the tenancy. It is impossible to know the causes of that mould development with any certainty. Moisture ingress through some of the windows may have been a contributing factor. e. To the extent that there were ‘property issues’ that caused / contributed to mould problems, the tenants gave the landlord very little opportunity to investigate and address them. There is no evidence of any communication from the tenants to the landlord about mould until near the end of the tenancy.
- It is an unlawful act for a landlord to fail provide an insulation statement or to include information in the statement that the landlord “knows to be false or misleading” 2 . Exemplary damages of up to $900.00 can apply.
- [The property manager/s] maintains that the landlord’s builder viewed the ceiling insulation and confirmed its condition. The description of the insulation as “segments” was false.
- My finding is that it is appropriate to award exemplary damages in this instance. The Tribunal’s usual approach to exemplary damages is to award one-third of the maximum and then increase or decrease having regard to aggravating or mitigating factors 3 . There are no proven relevant aggravating or mitigating factors in this instance. I will award exemplary damages of $300.00. Incorrect insurance statement 2 Section 13A(1F) RTA 3 Wellington Property Management Ltd v Hardie [2022] NZTT 4399281 4374781
- Landlords must provide information to the tenant about insurance on the property, including the amount of the excess 4 .
- It is an unlawful act for landlord to fail to provide an insurance statement or to include any information that the landlord knows to be false or misleading.
- [The property manager/s] acknowledged that she made an error when completing the insurance statement in the tenancy agreement. She mis-read the certificate of insurance and stated that the excess was $1,000 when in fact it is $1,500.
- [The property manager/s] also provided the tenants with a copy of the certificate of insurance, which has the correct figure on it.
- [The property manager/s] could have quickly identified and corrected this error if it was brought to her attention during the tenancy.
- I am satisfied that this was a genuine error, that there was no intent to mislead or give false information, and that there was no impact on the tenants.
- In the circumstances I will not make an award of exemplary damages. Interference with reasonable peace, comfort, and privacy
- This part of the tenants’ application relates to the landlord’s handyman, [handyman], coming to the property without notice near the end of the tenancy.
- [The property manager/s] submitted that: a. In June 2023 she became aware of the need for some work at the property (the tenants sent her text messages, and she carried out an inspection). b. [Handyman] was going to do some of the work, but he was unwell at the time. c. It was understood that [handyman] would go to the property to do the work when he was well enough. d. Ruakaka is a small community, and she leaves it to [handyman] to communicate with the tenants about a good time to come around.
- The tenants let [handyman] into the property, and they chatted about the work that needed to be done, but they decided that because the tenancy was nearing an end there was no point in starting the work at that time.
- The entry into the property was lawful because the tenants gave their consent at the time 5 . 4 Section 13A(2)(b)(i) RTA 5 Section 48(1)(a) RTA
- It was reasonable for [The property manager/s] to leave it to [handyman] to co- ordinate a good time with the tenants. It seems that he failed to do so in this instance, but the impact on the tenants’ peace comfort and privacy was minimal. There is no reasonable basis for an award of compensation or exemplary damages. Landlord application Reinstate smoke alarms
- The landlord seeks the cost of reinstating the smoke alarms after the tenants took them down.
- I acknowledge Mr Pinny and Ms Dey’s oral evidence that the alarms would ‘go off’ at random.
- However, tenants have an obligation to not interfere with the means of escape from fire 6 . Doing so is an unlawful act, and the landlord could seek exemplary damages of up to $4,000.00.
- The claim for the cost of reinstating the alarms, which was an actual cost incurred by the landlord, is fair and reasonable.
- As noted in the previous order, the tenants accepted the claim for water rates to the end of the tenancy. Bond, name suppression
- Both parties were successful or partially successful in their applications and both are entitled to the filing fee.
- Both parties sought name suppression. The Tribunal must grant suppression to any party that has “substantially succeeded” in the proceedings. The landlord was successful in its application (seeking the cost of reinstating the smoke alarms) and I have held the landlord liable in respect of a minority part of the tenants’ application. I am satisfied that the landlord has substantially succeeded in the proceedings and name suppression is granted to the landlord. The tenants have not substantially succeeded in the proceedings and I am not able to grant them name suppression on the same basis.
- The Tribunal has a discretion to grant name suppression “having regard to the interests of the parties and the public interest” 7 . In this instance there are no particular considerations that support name suppression. 6 Section 40(2)(ab) RTA 7 Section 95A(4) RTA N Blake, 30 January 2024